September 2011

September 26, 2011

Rejection: The Senate on Friday rejected a House-passed spending bill, raising concerns among lawmakers about whether Congress is capable of tackling major issues, The Washington Post reports. "If we can’t do this, how do we do the heavy lifting?" Rep. Phil Roe (R-Tenn.) said.

Constitutional Rights: The way the federal government blocked funds to an Islamic charity and designated it a terrorist group infringed on the organization's First and Fourth amendment rights, the 9th Circuit U.S. Court of Appeals ruled Friday. But the appellate court supported the U.S. Office of Foreign Assets Control's decision to classify Al-Haramain as a terrorist group, The Recorderreports.

Lost Money: A client of Crowell & Moring on Friday sued the firm for $5.5 million in missing real estate escrow money, alleging that a former associate improperly redirected the funds, the New York Law Journal reports. "I feel like I've been living a bad episode of Law & Order since last Tuesday," said attorney Bruce H. Lederman, who filed the suit on behalf of Regal Real Estate and related entities. Crowell & Moring declined to comment.

Minority Voting: The U.S. Justice Department on Friday claimed that the new Congressional map for Texas was designed to weaken minority voting power, Roll Callreports. "Based on our preliminary investigation, it appears that the proposed plan may have a prohibited purpose in that it was adopted, at least in part, for the purpose of diminishing the ability of citizens of the United States, on account of race, color, or membership in a language minority group, to elect their preferred candidates of choice to Congress," the DOJ wrote in a brief.

Breakfast Costs: Hilton Worldwide is disputing the $16 muffin finding published in a DOJ Inspector General report, CNN reports. "The contracted breakfast included fresh fruit, coffee, juice, and muffins, plus tax and gratuity for an inclusive price of $16 per person," Hilton Worldwide said in a statement. The Office of Inspector General disagrees with the hotel chain.

September 23, 2011

Senate Majority Leader Harry Reid (D-Nev.) has hired a new lawyer on his staff, picking up a trade specialist from the Senate Finance Committee.

Ayesha Khanna will be a counsel and policy adviser, according to a news release from Reid’s office. She has been an international trade counsel with the finance committee for the past four years and also worked on trade while at the U.S. Department of Commerce.

She succeeds Mike Castellano, who worked for Reid for six years until leaving recently to become vice president for government relations at The Walt Disney Co. “Ayesha’s depth of knowledge of international trade and sharp command of Senate procedure is impressive, and I look forward to working with her,” Reid said in the news release.

A top U.S. Justice Department lawyer today defended the Obama administration's health care law, saying the minimum coverage provision of the Affordable Care Act is within the power of Congress.

The attorney, Beth Brinkmann, who leads the Civil Division’s appellate team, told a three-judge panel in Washington that the law, under attack in courts around the country, is a valid exercise of congressional authority.

Brinkmann noted several times the “crisis” in the health care market and said the law regulates the financing of a unique industry.

U.S. District Judge Gladys Kessler upheld the law in a ruling earlier this year. Kessler rejected critics’ claim that the minimum coverage provision regulates “inactivity.” The plaintiffs, represented by the American Center for Law and Justice, took the dispute to the D.C. Circuit for review.

More than 150 spectators gathered in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse in downtown Washington to hear the argument, which lasted two hours.

Judge Brett Kavanaugh and Senior Judge Laurence Silberman explored with Brinkmann whether the government has any limiting principle—that is, a restriction on how far Congress can go to require a purchase.

Public Defender Service attorneys Corinne Beckwith and Catharine Easterly appeared before a Senate committee Friday morning to testify on their nominations to the District of Columbia Court of Appeals.

The two appeared before the Senate Committee on Homeland Security and Governmental Affairs, which considers judicial appointees to local Washington courts. Sen. Daniel Akaka (D-Hawaii) ran the hearing alone.

Beckwith and Easterly are President Barack Obama’s nominees to replace two associate judge positions vacated by retired judges Inez Reid and Noël Kramer.

Beckwith was Obama’s first nominee to the appeals court. An appellate lawyer with the Public Defender Service since 1999 and supervisor of the appellate division since 2009, Beckwith told the committee that the D.C. Court of Appeals is the “court where I learned so much about what I know about the law and good lawyering.”

Easterly has been with the Public Defender Service since 2003, and serves in the Special Litigation Section. She said that she became an attorney “to do public service,” and that she would be able to transition from advocate to impartial judge because both positions deal with ensure the law is fairly applied.

During the 30-minute hearing, Akaka asked both nominees how they would handle the court’s heavy docket. Judges have come under scrutiny in the past for their slow pace in producing opinions.

Beckwith said that the notoriously busy schedule of a public defender has made her comfortable “producing quality work under pressure.” Beckwith said she wasn’t sure yet what her management style would be, but added that she would consult with other judges on how they organize their chambers.

Easterly said she expected that managing the workload would be one of the most challenging parts of the job. Like Beckwith, Easterly said her time in the public defender’s office has taught her how to “triage” case work.

Public Defender Service Director Avis Buchanan and other staff from the office were in attendance, as was U.S. District Judge Emmet Sullivan, who chairs the District of Columbia Judicial Nomination Commission.

Paul Strauss, the shadow senator for the District, also came to the hearing and entered a statement on the record in support of both nominees. But he also used the opportunity to make a pitch for D.C. voting rights, noting that no one elected by local residents could vote on judicial nominees to the city’s highest court.

With 18 years of experience with the U.S. Marshals Service under his belt, Michael Hughes is President Barack Obama’s nominee for U.S. Marshal of the District of Columbia Superior Court, according to an announcement released Thursday evening.

Hughes has spent his career with the U.S. Marshals Service, currently serving in the Tactical Operations Divisions as chief of the Office of Crisis Services. He first joined the Marshals in 1991, serving in the Witness Security Division, on protection detail for a deputy attorney general and on detail to Sen. Frank Lautenberg (D-N.J.).

Hughes could not immediately be reached for comment on Friday morning.

If confirmed for a four-year term, Hughes would be the second openly gay person to be nominated by the president and confirmed as a U.S. Marshal nationwide, according to the Human Rights Campaign. The Human Rights Campaign has supported Hughes’ nomination, sending a
letter (PDF) on his behalf to the White House in May 2009.

“In addition to his impeccable record of service and strong credentials, Michael’s nomination to be the United States Marshal for the District of Columbia as an openly-gay man would be significant,” Human Rights Campaign President Joe Solmonese wrote.

Hughes would replace former U.S. Marshal Stephen Conboy, who resigned in the spring of 2008. Thomas Hedgepeth has served as acting U.S. Marshal for the court since mid-2010.

Supreme Court Justice Antonin Scalia will be giving a major address on Saturday marking the centennial of Duquesne University School of Law in Pittsurgh. In conjunction with the talk, the law school is pulling out all the stops and celebrating the justice's own special occasion: as of Monday Sept. 26, Scalia will have been on the Court for 25 years.

In addition to a gala black-tie dinner, there will be panel discussion by some of his former clerks -- including Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit and Time/Warner general counsel Paul Cappuccio -- talking about the justice. A film celebrating Scalia's public service will be shown, and some music students will put on a mini-opera featuring some of his favorite musical numbers. Scalia will also receive an award for his career of public service.

But if you're not already signed up to attend the sold-out event in person, you won't be able to see or hear any of it. At Scalia's request, all cameras have been prohibited; print reporters will be allowed, and can tape remarks only for note-taking accuracy, not for broadcast. C-SPAN, which wanted to broadcast the event, is taking a pass because of the rules.

"This is the justice's standard protocol,' said Rose Ravasio, the law school's media relations manager. Indeed, Scalia does usually keep cameras from recording his remarks and events. But extending the rule to what is billed as the "centennial address" for a law school's highly public celebration seems to take the practice to a new level. In a press release, the law school's dean Ken Gormley said, "The speech by Justice Scalia and the Black Tie Gala are really the culminating events of the Centennial."

As is almost always the case, however, the law school acquiesced to Scalia's demands. Asked if she wishes cameras were allowed at the event, Ravasio said, "We're grateful for any of the publicity we get."

Two senior executives from the troubled California solar company Solyndra Inc. appeared today before a congressional committee and, as expected, invoked the Fifth Amendment while declining to answer any questions.

Brian Harrison, the chief executive, and W.G. Stover Jr., the chief financial officer, said they were acting on the advice of counsel in choosing not to potentially incriminate themselves. Their lawyers, Orrick, Herrington & Sutcliffe partner Walter Brown Jr. and Keker & Van Nest partner Jan Little, respectively, told the House Subcommittee on Oversight and Investigations this week that they had advised their clients not to answer questions.

But the committee’s investigators decided to require the executives’ physical appearance anyway — a practice that has long been controversial, as The National Law Journal reported in February. Defense lawyers view such appearances as media-driven theatrics that would never be allowed in a courtroom, while congressional lawyers say witnesses sometimes change their mind and answer questions. The D.C. Bar’s Legal Ethics Committee has considered whether congressional lawyers could face sanctions for participating in such hearings.

Rep. Cliff Stearns (R-Fla.), the subcommittee chairman, said today the executives’ refusal would not deter him from looking into a $535 million federal loan guarantee that Solyndra received. The company filed for bankruptcy this month, leaving taxpayers potentially on the hook.

“We will get to the bottom of why this loan was pushed out to a company whose liquidity issues were a ‘major issue’ to [Department of Energy] staff reviewing the loan back in 2009 — and which ultimately caused its bankruptcy,” Stearns said.

One Democrat, Rep. Henry Waxman (Calif.), thought that Republicans went too far in peppering the two executives with questions even after he said it became clear today they would not answer any. He called the questions “witness-badgering.”

“That to me is an improper line of questioning. They’re sound-bites. They’re attempts not to get real answers. I think our committee is better than this,” Waxman said.

Housing Failings:The Wall Street Journal previews two reports to be released today by the inspector general of the Federal Housing Finance Agency. The reports address staff shortages and risk controls at the agency and at mortgage giants Fannie Mae and Freddie Mac.

Lawmakers' Pensions: State legislators nationwide are boosting their future pensions under various kinds of special retirement laws, USA Today reports. The laws remain on the books even as states cut basic services and benefits for police, teachers and other workers, the newspaper reports.

Budget Showdown: The Republican-led House early today voted largely along party lines for a spending measure designed to keep the government open past Sept. 30, but Senate Democrats said the legislation can't pass there, The Washington Post reports.

Latest Execution: The state of Alabama executed a man late Thursday for the 1994 shooting death of an Alabama store clerk, The Associated Press reports. The man confessed after his arrest, court records show.

Off the Ballot: Former Olympian Carl Lewis can't outrun the U.S. Court of Appeals for the 3rd Circuit, which on Thursday reversed itself and took Lewis off the ballot for a seat in the New Jersey Senate, NJ.com reports.

September 22, 2011

American Bar Association President William Robinson III sent a comment letter Wednesday to the Department of Labor, asking the agency to reconsider a proposed rule that would “impose an unjustified and intrusive burden on lawyers and law firms and their clients.”

The proposed rule change would alter the longstanding interpretation of the Labor-Management Reporting and Disclosure Act, a law passed in 1959 that regulated the relationship between unions and their employers.

In his letter, Robinson objected to the proposed changes that would require lawyers to disclose information that he argues is sensitive and confidential.

“The new proposed interpretation would essentially nullify the advice exemption contained in the statute and thwart the will of Congress,” Robinson wrote. “The Proposed Rule could seriously undermine both the confidential client-lawyer relationship and the employers’ fundamental right to counsel.”

He also said the proposed rule is inconsistent with the association’s Model Rule of Professional Conduct dealing with confidentiality and information and runs contrary to many state rules of professional conduct. Robinson recommended instead that the department continue with the current policy.

“The Department will review all comments received and respond in a final rule,” a U.S. Department of Labor spokesman said.

K&L Gates is advocating for Mitsubishi Motors North America Inc. on the issue of fuel efficiency standards, according to a lobbying disclosure form filed with Congress this week.

Firm lobbyists Scott Aliferis, Cliff Rothenstein and James Walsh, a former Republican congressman from New York, are handling the account for Mitsubishi, the manufacturer of the Lancer, Eclipse and Outlander cars.

"Since we're such a small manufacturer, K&L Gates is helping us to basically educate the administration and the agencies and our congressional delegation about who we are and what we build," Mitsubishi spokesman Dan Irvin said. Walsh declined to comment.

The lobbying registration comes a couple months after President Barack Obama announced an agreement to increase fuel economy standards for cars and light-duty trucks from 27 to 54.5 miles per gallon by model year 2025.

In November, the automaker will start selling the Mitsubishi i, a battery-powered electric vehicle. The car will be the first all-electric Mitsubishi car to go on sale in North America.

K&L Gates is currently the only firm registered to lobby for Mitsubishi Motors North America, according to congressional records. The company did not engage in lobbying during the first half of this year.